DocketNumber: No. CV95-0547476
Citation Numbers: 1995 Conn. Super. Ct. 13800
Judges: CORRADINO, JUDGE.
Filed Date: 12/12/1995
Status: Non-Precedential
Modified Date: 4/17/2021
The standards for deciding whether a motion for summary judgment should be granted are well known, such a motion should not be granted if there is a genuine issue of material fact. If one is found, however, it is not for the court to decide it.
The defendant claims that in this case the statute of limitations should be extended eight months until March 27, 1995.
The defendant claims the statute should be extended five months pursuant to the provisions of the Fair Debt Collection Practices Act
1.
The defendant does not appear to contest the fact that he disputed the note for a five month period from June 1994 to October 1994. Apparently he claimed his signature on the note was a forgery.
The plaintiff refers to
. . . if the consumer notifies the debt collector in writing within the thirty day period described in subsection (a) of this section that the debt or any portion thereof is disputed . . . the debt collector shall cease collection of the debt . . . until the debt collector obtains verification of the debt. . . .
The false representation of the character, amount or legal status of a debt is a violation of § 1692 e(2)(A) of the act. As the plaintiff notes a debt collector would violate the act if it does not use reasonable care to ascertain the debtor's correct identity, Beattie v. D.M. Collections Inc.,
The defendant does not claim that the plaintiff was dilatory in investigating the claim of forgery. If the federal act applies it would be fair and required by the Supremacy Clause of the United States Constitution that a debtor be estopped from raising a state statute of limitations defense and that such a state statute be tolled while the debt collector investigates a claim of forgery.
The defendant doesn't seem to dispute this proposition but rather argues that the plaintiff should not be allowed to take advantage of any protection the federal act might afford under the circumstances of this case.
The defendant notes that § 1692g(b), requires that a debt collector give a consumer notice as set forth in the previous subsection, § 1692g(a). The consumer must act within thirty CT Page 13802 days of proper notice before § 1692g(b) would act as a bar to collection activities. The defendant claims, although he doesn't establish by affidavit, that the plaintiff did not give the notice required under § 1692g(a). In fact failure to give proper notice is itself a violation of the act, Frey v. Gangwish,
I find it difficult to follow this argument. Clearly if the plaintiff has violated the provisions of § 1692g(a) it is subject to suit under the federal act. But subsection (a) is merely a notice provision alerting the consumer of his or her right to dispute the debt. If the consumer, whether or not properly notified, whether fortuitously or not, in fact notifies the debt collector of the dispute them the debt collector must "cease collection activities." The defendant can hardly claim the debt collector's obligation to cease collection activity doesn't operate if the debtor's dispute wasn't brought to its attention, as a result of the required statutory notice — that would stand the notice provision on its head. The point is the debtor raised the dispute, the debt collector by law had to cease collection activities; that in itself should serve to toll the statute while the dispute is being investigated. Should the debt collector after violating the act by failing to give proper notice further violate the act by bringing suit? Or, put another way, (1) if the debtor in fact notifies the debt collector of a dispute despite the fact that he or she didn't receive notice from the creditor (2) if the debt collector can be separately sued for failure to give such notice, (3) if the debt collector upon this notice ceases collection activity while the dispute is being investigated — how is the debtor being prejudiced if the statute is tolled anymore than if the debtor made known the dispute after receiving proper notice? The prohibition against collection activities while the dispute is being investigated is for the debtor's protection. If proper investigation and verification is conducted that's all the statute sought to accomplish by requiring notice.1
2. CT Page 13803
The plaintiff claims the statute of limitations should be extended a further three months because the defendant was out of state for three months. Section
(a)
The purpose of §
Although I couldn't find any case on point, I don't believe it's fair to let this reasoning apply in a situation where the plaintiff did not know or have reason to know the defendant was out of state and in fact where the defendant debtor was obliged under the terms of the note to inform the creditor of any change in address. He did not do so but in his affidavit claims he moved out of state and had left a forwarding address with the postal authorities. I believe it should be a predicate to a position that seeks to argue that a plaintiff should not be able to rely on §
(b)
The defendant also argues that §
Based on the affidavit submitted by the defendant I am not prepared to decide as a matter of law where the defendant was domiciled or in which state he was a resident — it would appear that he tries to construct his affidavit in such a way that he is a non-resident for purposes of a long arm statute analysis but a resident for the purpose of advancing the claim that his absence from Connecticut was only temporary. Besides even as to whether his absence was "temporary," given the fact he was out of the state for three months I can't say that was a temporary absence as a matter of law, cf Cortes v. Cotton, at 31 Conn. App. page 575.
The motion for summary judgment on the special defense (whose procedural propriety no one raised and I just noticed) is in any event denied.
Thomas Corradino, Judge
Bertha Building Corporation v. National Theatres ... , 248 F.2d 833 ( 1957 )
Banana Distributors, Inc. v. United Fruit Company and Fruit ... , 269 F.2d 790 ( 1959 )
Vicki Frey v. Richard J. Gangwish II , 970 F.2d 1516 ( 1992 )
Coombs v. Darling , 116 Conn. 643 ( 1933 )